Friday, May 18, 2012

Lopez v. Brewer (9th Cir. - May 18, 2012)

"There is profound irony in Lopez’s insistence that his death be painless. This is a description of his crimes, as related by the Arizona Supreme Court:

'Overturned and broken furnishings in the blood-splattered apartment indicated that a tremendous struggle took place prior to the murder. A scarf had been stuffed into the victim’s mouth, and she had been blindfolded with her pajama pants. An autopsy revealed that her throat had been slashed, and she had been stabbed twenty-three times in her left breast and upper chest and three times in her abdomen. Seminal fluid was found in both her vagina and anus.

When the officers arrived at the victim’s residence, the apartment’s condition evinced that a bloody battle had raged throughout every room in the apartment. Blood was splattered throughout the apartment and there were blood drops on the bathroom and kitchen floors. A concentration of blood drops in the kitchen, as well as the stream of dried blood down the victim’s body and onto her bloodstained feet, indicated the victim stood for some time while being stabbed. The victim had three lacerations on her scalp and a stab wound to the left cheek. These injuries, although not fatal, caused a considerable amount of bleeding. The victim had lacerations on her right arm and bruises and cuts on her left hand, all of which were characteristic of defensive wounds.' . . . .

The panel delicately omits these facts, as did our previous opinion, which merely referred to the crime as “brutal,” Lopez v. Ryan, 630 F.3d 1198, 1201 n.1 (9th Cir. 2011), but common decency surely calls on us to acknowledge that Lopez is not the victim here, and whatever pain he may suffer incident to his execution pales in comparison to the agony and terror he inflicted on a defenseless woman whose body he used to sate his lust. Judge Berzon’s dissent and Judges Pregerson’s and Reinhardt’s dissentals obsess about the discomfort Lopez might suffer during his execution, but say not a word about the incomparable suffering the victim endured during the last desperate minutes of her life. . . .

Towery’s discomfort, even if it were replicated in Lopez’s case, comes nowhere near true suffering, such as that endured by Estafana Holmes, who died more than a quarter-century ago after twenty-six knife wounds and multiple lacerations; being beaten, raped, sodomized and degraded; and shedding liters of blood as she struggled in vain to save her life. See Lopez, 857 P.2d at 1265. Estafana had no chance to call her lawyer; there were no witnesses to her agony; she did not get to say farewell to her loved ones; she was allowed no last meal or final statement; no Article III judges agonized over her ordeal. “The death-by-injection which [my colleagues] describe[] looks pretty desirable next to that.” Callins v. Collins, 510 U.S. 1141, 1142 (1994) (Scalia, J., wisely concurring in the denial of certiorari). . . .

Lopez has presented no evidence that his execution will involve 'an objectively intolerable risk of serious harm.' Id. (internal quotation marks omitted). Absent such evidence, I don’t see where he has raised a viable Eighth Amendment claim or any basis for enjoining his long delayed and richly deserved execution."

This is characteristically powerful (and flowing) stuff from Judge Kozinski. So I'll only briefly comment on his characterization of Lopez using Holmes' body to "sate his lust," reminding everyone that rape -- especially, rape and murder -- isn't about lust at all, but is instead about power.

Beyond that, I just wanted to mention two overall reactions to what Judge Kozinski says. First: Wow. Very powerful stuff. Well done. Second: To me, there's a huge element of bloodlust here. Something you don't usually see in judicial opinions. Or at least not to this degree. Sure, there's an element of retribution involved in imposing the death penalty (rightly or wrongly). So I have no doubt that one can perhaps be glad that a sentence is finally imposed, which might lead one to end a concurrence by describing someone's death (as Judge Kozinski does) as "richly deserved."

There's another way one could write an opinion. One that describes the death of any human as unfortunate, even if necessary. But Judge Kozinski doesn't take that route.

I'm reminded of different ways one characterizes wars. These events also involve the death (and killing) of humans. They may also be necessary. And we can also describe (often accurately) killing individual soldiers as justified; think, for example, the killing of Germans in World War II.

One could describe wars like these -- as we often did (and do) -- as glorious events that we should celebrate with flowery prose. Or one could describe them as terrible things that we nonetheless do because they are right and just.

I got the feeling from Judge Kozinski's opinion that, at the moment he wrote it, he was in the former frame of mind. I think it's generally better to be in the latter.

Death is bad. Even in the service of good. We shouldn't celebrate it. Even as we hasten its arrival.